Curb your mens rea

After recently returning from an excellent conference at Indiana University on the Milosevic trial and watching the open statement of Radovan Karadzic at The Hague this morning, a number of issues regarding the work of the ICTY and the writing of history of the 1990s come to mind.

As a scholar, the ICTY court records have become a treasure trove of documents and evidence on the events of the 1990s. Thus, even when working on topics not related to the wars, there is much data available which is of interest, from party documents of 1990 to entire books and memoirs. Just like a real treasure trove, the data is hard to find and has to be searched by defendant (for example in the Boskovski case alone there are 1828 statements, documents, etc. available) and if one is not an avid trial watcher it is not easy to know where to find what.

However, beyond the ICTY as a source, how to approach the court as a researcher? First, the ICTY asks different questions than many of us researchers ask. We are often less interested in direct criminal responsibility than in the larger social processes. However, even if we are, the standards of evidence for historians or social scientists are different than in a court. We hardly ever have our sources cross-examined and we accept that evidence and lines of reasoning are challenged later on by colleagues (even if we might not like it) while the court seeks to render a final judgment which will send somebody to prison for years. Thus, the role of scholarship is less about judging and more about assessing. This does not mean moral ambivalence and there is no doubt that scholarship, especially when dealing with Yugoslavia’s disintegration in the 1990s, has to assess responsibility. Scholarship does not need a guilty verdict against Milosevic at the ICTY to identify him to be responsible for much of the war crimes committed in Croatia, Bosnia and Kosovo. While legitimate questions remain about specific instances, the overall picture is quiet clear.

Here emerges some discomfort: In the Milosevic case, the prosecution paid particular attention to the intention (mens rea), painting a picture of nationalism and commitment to Greater Serbia (a term I don’t find very helpful) to explain the acts perpetrated or ordered by Milosevic, Karadzic et al. Here there is an uneasy relationship between the work of a trial and scholarship. The prosecutor’s role has been to present a clear linear story of ideological commitment and crimes committed in accomplishing this goal. It is a narrative which nicely links motivation to acts. However, as scholar, I feel distinctly uneasy about such a linear narrative. In fact, I am reminded of a very different example from legal practice. Having provided some expert advice on asylum cases, a more experienced colleague told that in verifying the story of a refugees for its veracity key is to look out for inconsistencies and quirks in their story. These are not evidence of problems in their claims, but the opposite. If the narrative of persecution and flight is too straight forward, like it should be, alarm bells should go on. Human life is too complicated and, well, too individual to fit into the large narratives. What applies to refugees is also true for war criminals. It is less their long-hedged master plan which is convincing, but the opportunistic, short-term calculations which motivate crimes. Change and inconsistency rather than a clear strategy. Furthermore, intention itself is very unsatisfying in a context when ill intent was very wide-spread. The key is who acted on it and who did not. If we take Vuk Draskovic’s statements in 1990 and 1991 (some even earlier), then his intentions appear much more dangerous than those of Milosevic and others. The commitment towards extreme nationalism, the hate speech towards other nations left little doubt about his intentions. Still, following a short engagement of his party’s paramilitaries in Croatia, he stopped supporting the war effort and became one of its main critics (more so than for example the currently governing DS in Serbia).

The current indictment against Karadzic and the opening statement by the prosecutor are largely encouraging in this regard as it does indeed focus on the crimes and not so much on the political pre-history. In court today, Karadzic tried to turn the prosecution’s case around by constructing a narrative of mens rea of the leadership of Slovenia, Croatia, the Bosnian Muslims and Croats and taking points from the prosecutions case and turning them around to replace his name with others. While the result was often a familiar conspiracy theory and distortion of historic events, there are legitimate disputes and conflicting arguments about the motivation to establish nation states and the dissolution of Yugoslavia. The fact that Slovenia and Croatia sought to leave Yugoslavia was understandable in the context at the time and there is certainly nothing to justify the use of force, but there are serious and legitimate political disputes at the heart of the Yugoslav conflict before it turned violent to which there is often no clear cut answer of right and wrong.

Thus, while the ICTY can contribute to the writing of history by disclosing chains of command, I am much more skeptical about the larger, linear narratives of mens rea which seem to run against the subtleties which scholarship has to identify.

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One Response to Curb your mens rea

I agree with your main line of argument but I think it is also more important to strongly point out the difference between a court judgement and academic-scholarly assessment. A court tries to find a final judgement for the behavior of a person, for their role in a certain social context and for its consequences. A court therefore is very individualistic and although the ICTY often uses the term “Criminal Enterprise”, it has to judge each of the indictees individually. There are legal codes in use, which sometimes scholars not familiar with international criminal law will not fully understand but this does not mean that these codes are wrong. Certainly the ICTY has also proven in many regards how not to do things, but from the perspective of international law and justice for the victims it has accomplished a lot. Scholars do not often look at these legal norms. Often moral responsibility plays a role in academic arguments. A court does not care about this unless it becomes part of a crime such as the obvious disrespect of international law as the ICJ has ruled against Serbia in the Bosnia vs. Serbia case.
For us to understand the historical processes, their consequences and possible ways of dealing with these is different than holding individuals accountable. I agree that Milosevic is probably in the top 10 of leading war criminals but I do not believe that the whole Serbian nation is to be held responsible. Holding individuals accountable may allow us to gain important information about decisions and their implemention and possibly also the reasons behind these decisions, but does it really explain the dynamics of complex social action? I am very doubtful about this. I think as academics with a non-legal background we need to be very careful when assessing ICTY documents for our work. After all, this are two different things…